1. According to the Argentine Constitution, the administration of justice
is vested in the Judiciary, whose organizational structure and operations are
set forth in Section Three, Chapters 1 and 2, entitled: “The Judiciary”. These
articles read as follows:

Article 94. The Judicial Power of the nation shall be vested in one Supreme
Court and in such inferior Courts as the Congress may establish in the territory
of the Nation.

Article 95. In no case may the President exercise judicial functions, assume
jurisdiction over pending cases, or reopen those decided.

For its part, Article 100 provides that the Supreme Court and the lower courts
of the Nation have jurisdiction to resolve all causes submitted to them for
decision.

2. In furtherance of these constitutional provisions, Law Nº 27 of October
16, 1862, which regulates the nature and general operations of the judicial
Power in Argentina, provides in Article 1, “National justice shall always proceed
in application of the Constitution and national laws…”; Article 3 states, “One
of its purposes is to enforce the Constitution and to disregard, when it decides
cases, any provision applicable to any of the national branches which may be
contrary to the Constitution.” Article 21 of this law states: “The national
Courts and Judges, in the exercise of their functions, shall proceed to apply
the Constitution as the Supreme Law of the land, the laws that the Congress
has passed or will pass, treaties with foreign nations, individual laws of the
provinces, general laws that prevailed prior to the establishment of the Nation
and the principles of International Law, as required, respectively, in cases
submitted to it in the order of priority that is established.”

3. The highest organ of the judicial Power is the Supreme Court. This Court
is composed of five members and the Attorney General is the Chief prosecutor.
The Attorney General is in charge of all public prosecutors.

To apply the federal Law, which derives from Article 100 of the Constitution,
the provinces of Argentina currently have approximately fifty federal trial
courts and eight appeals courts. Buenos Aires has a more complicated judicial
organization divided into different jurisdictions that hear cases according
to subject matter. This organization consists of several hundred single judge
trial courts and appeals chambers.

Besides the federal judicial system, each province—which according to Article
5 of the Constitution must ensure its own administration of justice—has its
own judicial organization and procedural laws.

4. In view of the special influence that the proper administration of justice
and due process have on the implementation of human rights, during its on-site
observation, the Commission held lengthy conversations on the subject with the
President of the Supreme Court, the Ministers of the Interior and Justice, members
of the federal Appeals Court, judges of Buenos Aires and Rosario, the Argentine
Federation of Bar Associations, the Bar Association of Buenos Aires and several
defense attorneys from both Buenos Aires and the interior who agreed to interviews
with the Commission.2

B. Organization of the Judicial System under the present Government

1. Pursuant to the Act for the National Reorganization Process, issued on
the date of the military takeover, March 24, 1976, changes were made in the
Argentine judicial system, the Supreme Court, the Office of the Attorney General,
and in the membership of the Superior Provincial Courts. This act signified
that the new authorities assumed the power to remove any sitting judge without
prior judgment or complaint of misconduct.

The changes in the federal court system had repercussions on the entire system,
from the highest jurisdictional bodies to provincial courts throughout Argentina.
In other words, the government dispenses with the legal system responsible for
the administration of Justice.

2. Article 96 of the Constitution sets forth the principle of judicial stability.
The pertinent part of that article reads:

The justices (judges) of the Supreme Court and of the lower courts shall hold
office during their good behavior…

Compared to the Constitution, Article 5 of the Act for the National Reorganization
Process reads as follows:

To remove the members of the Supreme Court, the Attorney General and the members
of the Superior Provincial Courts.

Article 9 of the Statutes for the National Reorganization Process reads:

Article 9 – To fill the vacancies of justices of the Supreme Court, the Attorney
General and the Comptroller General, the President shall confirm the appointments
made by the Military Junta.

Appointments of judges to the lower courts of the nation shall be made by
the President.

Article 10 – The members of the Supreme Court, the Attorney General, the Comptroller
General and judges of the lower courts shall enjoy the guarantees established
in Article 96 of the Constitution, from the time of their appointment or confirmation
by the Military Junta or the President, as the case requires.

3. The removal and replacements mentioned above, allowed the military authorities
to appoint a new Supreme Court and Attorney General new superior courts and
district attorneys general and to replace a large number of judges.

All these new magistrates were obliged to swear allegiance to and respect
for the Acts and Objectives of the institutional process decreed by the Military
Junta.

4. In an interview with the President of the Supreme Court, Dr. Adolfo Grabielli,
the Commission raised this issue. The President of the Supreme Court confirmed
to the Commission the source of these judicial appointments. He added, however,
that most of these appointments involved persons with proven moral and professional
background and were generally individuals with several years of experience as
judges.

Dr. Gabrielli also maintained that in seeking to enforce the Constitution
and the laws, the Supreme Court had shown its independence of the Executive
Branch in many cases. As examples of this behavior, he mentioned the sentences
handed down in the cases of Pérez de Smith, Ollero3 and Giorgio.
The President of the Supreme Court added that within a few days the Commission
would have the opportunity to see first hand a new expression of its independence.
He was obviously alluding to the Timerman case, in which the Supreme Court would
order his release.4

5. However, the Commission has also received information on many cases involving
persons who have been detained for a long time without any charges having been
brought against them, or who have been released by courts or have completed
their sentences. In these cases, the Courts have not sought their release due
to the fact that some authority in the Executive Branch has so ordered or requested.
Several of these cases were examined in the earlier chapter on personal liberty.5
The Commission will return to this anomalous situation when it considers the
remedy of Habeas Corpus later in this chapter.

C. Military Tribunals

1. After March 24, 1976, several legal provisions were promulgated on the
sentencing and punishment of persons charged by military courts with involvement
in subversive activities.

The abovementioned juridical order led to the establishment and operation
of Special Standing Military Tribunals, the purpose of which was to ensure the
effectiveness of the campaign against subversion.

The very day of the military takeover, Law 21.264 was promulgated. This law
creates Special Standing Military Tribunals throughout all of Argentina, which
are described in Article 483 of the Code of Military Justice, on extraordinary
procedures during times of war. Along with Permanent Military Tribunals for
Subordinate Personnel of the three Armed Forces, these special tribunals have
the power to pass judgment on crimes covered in this law. The law also deals
with summary judgment in time of peace for the application of the law to those
16 years of age and older and the use of the death penalty pursuant to the Military
Code and its regulations.6

On the same date, March 24, 1976, the Military Junta stated that as of 1.00
pm that day, personnel of the security forces, police and penitentiary forces,
both national and provincial, were under military jurisdiction.7

In November of that same year, the President approved a law stipulating what
crimes of subversion were to be submitted to a hearing and trial by the Special
Standing Military Tribunals. These crimes refer to events and situations provided
for in the Military and Penal Codes of Justice. The law also set forth certain
assumptions that deal particularly with the competence of the military courts.8

2. During its on-site observation, the Commission confirmed the complaints
submitted to it to the effect that a large number of persons detained for subversive
activity had been judged and sentenced by military courts. The sentences were
as high as 25 years in prison.

The alleged criminals were not allowed to choose their own defense attorneys
but were assigned official military defenders who are not licensed lawyers.
These circumstances and the fact that civilians were made subject to military
jurisdiction under the prevailing legislation were serious infringements of
the right to defense inherent in due process.

The Commission flagged its concern about this matter with the national authorities.
It also heard the ideas of experts in this field. These experts all agreed that
both the military courts and trials for which they assumed responsibility were
unconstitutional; they said they did not know of any cases in which civil attorneys
had been allowed to participate. These situations violate basic provisions of
the Constitution. One of these is Article 18 dealing with due process and the
fact that no inhabitant of Argentina may be tried by special commissions, nor
removed from the judges designated by law in view of the facts involved in the
case. Article 95, mentioned earlier, deals with the nature of the judicial branch
and provides the following: “In no case may the President exercise judicial
functions, assume jurisdiction over pending cases, or reopen those decided.”

D. Guarantees of Administration of Justice

1. One topic of special concern to the Commission is that of guarantees of
the administration of justice, in the absence of which, the fundamental rights
and liberties cannot be truly observed.

As will be explained further on, these fundamental guarantees of the administration
of justice have been seriously violated in Argentina. Protection of these guarantees
is taken up in the American Declaration of the Rights and Duties of Man and
in the Argentine Constitution itself. Among these guarantees the following should
be mentioned:

2. a. Nullum crimen, nulla pena, sine lege (no crime, no penalty, without
law) is provided in Article XXV of the American Declaration and Article 18 of
the Argentine Constitution. The latter reads as follows: “No inhabitant of the
Nation may be punished without a prior judgment pursuant to a law which antedates
the trial…”.

Despite the express norms implementing this juridical principle, the Military
Government, in the Act of Institutional Responsibility, expressly abrogated
this principle, establishing explicitly the retroactivity of these norm in referring
to prior actions, and in establishing in Article 1, that: “The Military Junta
assumes the function and responsibility of considering the conduct of those
persons who have prejudiced the national interest by having committed…”.

3. b. Declaration of Presumption of Innocence, is provided for in Article
XXVI of the American Declaration. This principle was eliminated as a judicial
guarantee by Law 21.460 which gave the Armed Forces and security personnel the
power to detain persons suspected of crimes of subversion against which they
have “half proof” of their guilt, and to institute against them the corresponding
proceedings, whenever they have knowledge of that “half proof”:

This manner of investigation—according to the statement of reasons for the
law—is simple and flexible, and makes it possible to bring together all the
necessary evidence, within a short period of time and in a concrete way…

It is evident that this law expressly denies the accused the presumption of
innocence.

4. c. Right to an impartial trial. This elementary and basic principle, expressly
recognized by Article XXVI of the American Declaration of the Rights and Duties
of Man, has been the subject of much testimony and information received by the
Commission. According to this information, the Military Courts composed of officers
involved in the repression of the same crimes they are judging, do not offer
guarantees of sufficient impartiality. This is aggravated by the fact that in
a military court, the defense is in the hands of a military officer, meaning
that the defense is taken over by a person who is part of, and has strong disciplinary
ties to, the same force responsible for investigation and repressing the acts
with which the accused is charged.

5. d. Right to be brought to trial within a reasonable time. This guarantee,
as stipulated in Article XVIII of the American Declaration of the Rights and
Duties of Man, is not enforced in Argentina, because, as the great majority
of the complaints involving detainees show, the corresponding appeals generally
are not resolved opportunely. This guarantee has been violated by both police
authorities responsible for investigating alleged crimes and the military. It
has also been violated by the Executive branch which is holding hundreds of
citizens without charge.

E. The Writ of Habeas Corpus

1. The actions of Habeas Corpus and of Amparo (or protection of individual
liberty) are covered in the Code of Criminal Procedure, Title IV of Section
Two, concerning to special trials under the subtitle “Procedure in cases of
illegal detention, arrest or imprisonment of personnel.” Article 617 of the
aforementioned Code reads as follows:

The writ of Amparo (protection of individual liberty) is appropriate against
any order or measure of a public official that illegally restricts the freedom
of a person.

The writ of Habeas Corpus is appropriate when a state official imprisons a
member of Congress or any other individual working on contract or as an employee
of the federal Government.

2. The writ of Habeas Corpus in Argentina is an institution that is not expressly
set forth in the Constitution; it is found instead in the Code of Criminal Procedure,
although it is understood to be implicitly guaranteed by the Constitution, and
applies to both the administration of justice in Buenos Aires and throughout
all the federal territory. In the Province, similar legal provisions exist and
even permit the writ to be processed without formality.

According to Articles 618 to 645 of the aforementioned Code, claims of illegal
detention in Argentina have been filed and processed before federal judges in
both the capital and the provinces. Federal Courts act in exceptional cases,
the writ is used because the organizations that carry out detentions, such as
the Armed Forces, the Federal Police and the border security forces, are federal;
all these organizations are responsible for waging the campaign against subversion.

3. In this examination of the effectiveness of Habeas Corpus, a distinction
should be made as to cases involving the status of disappeared persons or a
person detained at the disposition of some authority.

In principle, the difference between a kidnapping and a detention charged
to security forces, is virtually indiscernible, as can be deduced from the many
testimonies gathered by the Commission. In virtually all the cases recorded
by the Commission, the detainee or his friend or relative were unable to determine
which authority was responsible for the detention. They merely knew that the
detention occurred in the guise of kidnapping. That is, it involves individuals
out of uniform, unidentified vehicles, masks in some cases, no writ or record
made of the act, and no information as to where the detained person was taken;
the same procedure as in the case of a disappeared person. The fact that a detained
person is later placed at the disposal of the Executive branch pursuant to the
state of siege, is the only point that differentiates, in practice, one situation
from the other.

4. First, the Commission will analyze the situation and processing of a writ
of Habeas Corpus of the type involving an individual who ultimately is added
to the growing list of the disappeared.

Within 48 hours of receiving a Habeas Corpus, a judge generally will request
a report on the situation covered in the writ by means of telegrams to the Ministry
of the Interior, the Federal Police or to Armed Forces Command Units. These
telegrams are also addressed in some cases to police authorities in the place
where the detention occurred. The various authorities generally reply to the
effect that they have no information about the detention of such person. With
that reply in hand, the Court forwards the information to the attorney and the
parties, and then proceeds to hand down a ruling which states that the person
is not in detention; that there are no grounds for the writ and that it is,
therefore, rejected. Before placing the file in the archives, the federal judges
submit a copy of the proceedings to the criminal court of the locality where
it is alleged that the disappearance of the person, and on whose behalf the
Habeas Corpus was filed, took place, so that the disappearance of that person
is investigated. In the criminal court, the files are classified as “investigation
for illegal deprivation of liberty of … (person’s name.”

If the family or the interested party appeals to the federal Court, the Court,
on the basis of the evidence in the file, almost without exception, affirms
the decision of the federal Judge and the petition for Habeas Corpus is rejected.

Finally, if an appeal is made to the Supreme Court (by presenting a special
petition to the federal Court asking that the file be submitted to the Supreme
Court), the federal Court will not allow it, stating that such appeal is improper.

Facing such denial, some persons file a complaint directly with the Supreme
Court. In such instances, the Supreme Court requests the file from the federal
Court and decides that the denial of appeal was proper.

Despite this manner of dealing with Habeas Corpus petitions in cases of the
disappeared, the fact that the courts state that thus far the party for whom
the appeal is entered is not listed as detained, causes many persons, desperate
to establish the whereabouts of the disappeared person, repeatedly to file petitions
of Habeas Corpus yet receiving the same negative result.

It should be pointed out that the decision taken with regard to the petition
for Habeas Corpus does not constitute res judicata, and the petitioner has the
right to appeal again to the same court or to another one as many times as he
may wish until the case of the disappeared person is clarified.

5. Although Habeas Corpus is appropriate only in cases of illegal detention,
in the case of the disappeared given the fact that the military authorities
deny having any information and since such persons have been seized by individuals
apparently belonging to the military, the only legal recourse left for the families
of the disappeared is to petition for Habeas Corpus. Actually, through such
a petition, they seek to learn whether the disappeared person was detained and
the place of detention, in order to exercise the right of defense. The reason
why several petitions for Habeas Corpus were entered with regard to the same
person was the hope that, after the initial denial, the person might turn up
in the custody of some military authority. The parties did not file charges
on the crime of kidnapping because the seizure apparently was not made by a
private group, but rather by military authorities. The “operation” almost always
followed the same pattern, it took a long time, no military authority interfered,
and there was freedom to carry out such activities.

The foregoing leads the Commission to the conclusion that the petition for
Habeas Corpus was the only means for guaranteeing not only freedom but life
itself.

In the great majority of cases, however, it was not a suitable instrument
for having the judges order better and exhaustive investigations to clarify
the situation of the disappeared persons.

6. The Supreme Court sought to remedy these inefficient investigations of
the disappeared. The Court decided that the judge should expand the investigations
and take the necessary measures to clarify the situation of disappeared persons.

In a judgment dated April 25, 1978, the Supreme Court, in a petition for review
filed by César Ollero, in the case Ollero, César s/Habeas Corpus, on behalf
of his daughter, Inés Ollero, stated as follows:

WHEREAS:

1) The federal Court of Criminal and Correctional Appeals of Buenos Aires
affirmed the lower court judgment which rejected the petition for Habeas Corpus
filed on behalf of Inés Ollero by her father, because the reports received from
the relevant security organs indicated that the person named was not being held
by any of the authorities consulted. He entered a special petition, which, upon
being denied, gave rise to this complaint.

2) That there is a federal question on record, due to the nature of the matter
and due to the allegation of injury to the right to a defense, insofar as certain
evidence was not considered and the investigation was not carried out in accordance
with the requirements of the facts of the case.

3) Although it is true that, according to the reports on file, the security
forces would not have taken measures to restrict the freedom of Miss Ollero,
and she is not at the disposal of those agencies, it is no less true that there
is evidence on file that supports a strong presumption that Miss Ollero was
a passenger on a bus subject to a control operation in which all the passengers
were taken to Police Station Nº 49. This emerges from page 24 of the military
communication, page 45 of the report, and pages 29, 30, 31 and 32 of the witnesses
statements, which are the same in several respects, including the bus number,
although not the line to which it belonged.

4) In view of this, the judge should have broadened the investigation and
taken the necessary measures required by the facts on record to duly clarify
the matter relative to the status and personal situation of the individual named,
and the truth of the events, because it seemed the evidence prima facie showed
that she was deprived of her freedom by public officials.

This is so because the institution of Habeas Corpus, which was established
to immediately restore freedom to persons illegally deprived of it, requires
the exhaustion of judicial procedures.

5) Notwithstanding the above conclusion the judge has transmitted a photocopy
of the proceedings to the relevant authority to investigate the possible crime
of illegal deprivation of Miss Ollero’s freedom. This measure did not excuse
or replace the requirements referred to in the preceding paragraph. Moreover,
on the date of the Court’s judgment which affirmed the petition for Habeas Corpus
(page 65) the judge who had jurisdiction over the proceedings relative to the
abovementioned crime had already dismissed that case (cf. page 57 overleaf of
the file appended), whereby Miss Ollero’s fate was left completely uncertain.

Therefore, having heard the Attorney General, this complaint is justified,
and since no further material is necessary, the judgment on page 65 of the principal
file is revoked, and the files are to be remanded to the Court of origin so
that the case be processed in accordance with established procedure.

Despite the categorical terms of the judgment and the investigation carried
out by the judge having jurisdiction over the case, it is a fact that, as of
the date of approval of this report, Miss Ollero continues to be a disappeared
person.9

The accumulated evidence subsequently led the Supreme Court, upon the third
presentation of the case Pérez de Smith, et al. to reiterate in its judgment
of December 21, 1978, that there reigns a situation of actual loss of jurisdiction
which the judges are unable to remedy.10

7) It is appropriate to recognize that the main responsibility for this situation
of loss of jurisdiction is with organizations which effectively monopolize the
exercise of state forces. Even so, it must be pointed out in this Chapter that
the judges have not taken exceptional steps to clarify the instances of loss
of jurisdiction which they have had to face. In none of the recorded cases have
the judges come to the headquarters of the security forces in order to establish,
in situ, the truth of the reports that have been submitted to them. Neither
have special investigatory measures been provided for, despite the awareness
of the magnitude of the cases at hand, nor has any public official even been
tried who may have participated in the operations involving the disappearance
of individuals. It is not acceptable—and in particular it should not be acceptable
to the judges—that so many thousands of cases of disappeared persons remain
unsolved, and that no official has to answer for them due to the inefficacy
of those who have assumed the exercise of the authority of the state, which
involves, among other obligations, the obligation of guaranteeing the safety
of the community.

8) In cases in which petitions for Habeas Corpus are entered, with regard
to persons detained on instructions of the Executive branch, the results thus
far have been equally ineffective. In these cases, the judge requests information
from the Executive branch, which, through the Ministry of the Interior, submits
a copy of the arrest warrant, signed by the President o the judge. This warrant
states that the measure has been taken pursuant to the authority granted by
Art. 23 of the Constitution.

Almost all of these warrants follow the same pattern, varying only in terms
of whether they were issued under the government of former President María Isabel
Martínez de Perón or by the current government. In both instances, the warrants
include several persons in the same statement who generally have nothing in
common other than their date of arrest.

In the reports that accompany submission of a copy of the arrest warrant,
issued by the Ministry of the Interior, a formula is used which states in part
that the arrest of the person for whom appeal is entered was due to “his connection
with subversive elements.”

Having seen the arrest warrant, the judge rejects the petition for Habeas
Corpus, stating that the Executive is authorized to detain anyone pursuant to
the aforementioned constitutional article.

9) This pattern was broken in April 1977, with the judgment handed down by
the federal Court of Appeals in Criminal and Correctional Matters of Buenos
Aires, which accepted a petition for Habeas Corpus presented on behalf of the
lawyer Carlos Mariano Zamorano.11 The Court, applying the
theory of reasonableness in determining the justification for his prolonged
detention under the Executive branch, stated, among other things, as follows:

The Court, concerned with the special features of the case, since the detention
of this citizen goes back to November 28, 1974, and in order to gather the information
collected by the Executive branch over such a long period of time and to have
the evidence for a final decision, sent a telegram to the Minister of the Interior,
asking him to state whether the reasons for which Mr. Zamorano was deprived
of his freedom still exist and, if so, to state such reasons.

The judgment continues:

With regard to the substance of the matter, it should be stated that this
Court, now and in previous decisions, has stated that the judicial branch is
an integral part of the government of the Republic and therefore shares in governing
the state with regard to each juridical and institutional organization, acting
within the sphere of its competence.

Therefore, it has the inescapable duty of ensuring the rights and guarantees
established in the Constitution, which were emphatically affirmed by the Institutional
Acts, which are the basis for the current process of national reorganization.

It is unacceptable to sustain the theory put forth that the President is the
only person empowered to evaluate the situation of persons held on his instructions.
Although eminently political and non-judicial matters fall outside his sphere
of jurisdiction, it is no less true that the judicial branch is responsible
for analyzing, in exceptional cases such as this, the reasonableness of the
measures adopted by the Executive branch. This is set forth in Art. 25 of the
Constitution and in Articles 29 and 95 of the Fundamental Law.

The national interest and individual freedom must be made compatible so that
it will not be possible even to assume that those who are deprived of their
freedom on instructions from the Executive branch will be left to their fate
and beyond any control by the judges of the Nation, no matter how long the arrest
continues.

In after more than two years of the citizen’s deprivation of freedom the Administrative
branch can show only the arrest warrant as the sole reason therefore, and if
such a long period of time has not been diligently used to gather evidence of
charges or answers to charges regarding the person detained, then it is self-evident
that this Court must conclude that in the present instance, since there is nothing
on record concerning the dangerous nature of Carlos Martínez Zamorano, and in
view of the time that has gone by since his detention, it is unreasonable and
unfounded to prolong such a situation.

The judgment concludes as follows:

… In view of the need to choose between individual freedom and the hypothetical
and undemonstrated dangerous nature (of the detainee), we choose the former,
running the risks that it involves, safeguarding a value which no Argentine
has renounced.

The federal Court ordered the Executive to release the person detained, but
the judgment was not executed. In view of the appeal of the government attorney,
the Supreme Court, in August 1977, demanded a more detailed response from the
Executive branch, and accepting the arguments presented by the Government, decided
that the detention by the Executive could continue, since the aforementioned
report was now accurate and specific with regard to the connection between the
reasons for the State of Siege and the detention of Dr. Zamorano.12

10) In all the subsequent instances in which the courts applied the doctrine
of the Zamorano case, in accordance with the terms of the federal Court of Appeals
judgment handed down on April 23, 1977, the Supreme Court, upon taking up the
petition for Habeas Corpus on motion by the Government attorney, has revoked
the order for release.13

Only in the first resolution of July 20, 197814 handed down
in the Timerman case, which deals with the arrest on instructions from the Executive,
did the Supreme Court have recourse to the Zamorano case, adopting its judgment
of August 9, 1977, the conclusions of which it applied in their entirety.

Thus there is uncertainty as to the final result of the Habeas Corpus petition.

11) In the light of this background, the conclusion that can be drawn is that
the petition of Habeas Corpus has been frustrated. It is not a matter of the
Commission’s recommending an improvement—which might be possible—in the nature
of the Habeas Corpus, but rather its seeking and end to the procedure followed
in detentions or kidnappings, which is the basis for the frustration of the
jurisdictional guarantee of the right to life, liberty and the physical integrity
of all the inhabitants of Argentina.

It is because the organs centralizing control of the state forces are certain
that they will be treated with impunity that they answer to judges simply that
the beneficiary of the appeal is not under any detention order.

In brief, Habeas Corpus in Argentina has meant a real, virtual frustration
of this right. This is evidenced by the fact that out of the thousands15
of petitions presented no petition for Habeas Corpus has succeeded in recovering
even one disappeared person alive and, with regard to persons detained without
trial, only very few petitions for Habeas Corpus, if any, other than the one
filed on behalf of Jacobo Timerman, have brought about release.

F. Writ of Amparo (Judicial protection of civil rights)

1. The writ of Amparo is a judicial act established by Law 16.986 of October
18, 1966 “against any act or omission by the public authority which currently
or imminently harms, restricts, alters, or threatens, with obvious arbitrariness
or illegality, rights or guarantees explicitly or implicitly recognized by the
Constitution, with the exception of individual freedom protected by Habeas Corpus.

Originally, neither the Constitution nor the law of Argentina contemplated
the writ of Amparo among the defense guarantees citizens might use to ensure
respect for all the other rights and guarantees under the Constitution, other
than the right to personal liberty in cases of illegal detention. It was the
jurisprudence of the Argentine courts which, in 1956, established this means
of defense, 10 years before promulgation of Law 16.986.

2. In accordance with Argentine jurisprudence and doctrine, mention could
be made of some examples in which recourse to the writ of Amparo is appropriate.

a) When an individual believes that he is in imminent danger of being murdered
or kidnapped upon release;

b) When a free individual suspects that he might be kidnapped;

c) When an individual is prevented by threats and intimidation from working
or living in a specific place;

d) When an individual is threatened with the murder or kidnapping of his children;

e) When an individual fears being murdered upon transfer from one prison to
another;

f) With regard to wounds inflicted by the prison detention system; and

g) In general, against any current or imminent act or omission by the authorities
or by individuals or organized groups of individuals, against the rights and
guarantees set forth in the Constitution, other than freedom protected by Habeas
Corpus.

3. In practice, however, this defense is not used very frequently, and when
it has been used under the current military government, it has been accepted
on very few occasions.16

G. The situation of the defense lawyers

1. To conclude this Chapter, the Commission will refer to the situation of
the defense lawyers, who aid in the administration of justice, and without respect
for whom such administration cannot adequately proceed.

Since October 1975, that is to say, prior to the installation of the current
government, the Commission has been studying with concern the complaints and
information received, on the situation of defense lawyers, both in the exercise
of their professional activities and as concerns their lives, freedom and personal
safety. Thus it is that, on the basis of the reports presented by the International
Commission of Jurists, the Commission forwarded to the Argentine Government,
in various communications, complaints of violations of human rights alleging
the death, disappearance, detention or maltreatment of defense lawyers.17

In a note dated November 1, 1976, the current government, in reply to the
requests for information by the Commission, stated that “currently all professionals
can freely exercise their profession without suffering outrages or persecution
such as those mentioned, since the Argentine Government is devoted to eradicating,
one and for all, these methods of aggression, injustice and abuse.”

2. Subsequently, several complainants have reported on the worsening of the
situation of defense lawyers in Argentina, for which reason the Commission has
continued to consider this problem.

The Commission has received complaints alleging the death or disappearance
of several lawyers.18 The Commission has also received information
according to which there are currently nearly one hundred lawyers in detention,
several of them without trial.19

3. Moreover, the professional bar association and unions have expressed their
concern with the lawyers’ situation. The Argentine Federation of Bar Associations,
in a document entitled “Guarantees of due process,” which it approved at its
meeting held in Paraná on April 15, 1978, stated the following: “The security
forces must respect lawyers and protect the scope of their jurisdiction in the
legitimate exercise of their profession, so that due process will be possible
and so that the individual guarantees and the stability of the Republic will
not be unduly diminished.”

At the same time, the professionals belonging to the Buenos Aires Bar Association,
in a public statement on September 3, 1979 demanded “the full effectiveness
of the system of constitutional guarantees,” pointed out that one of the most
important purposes of union action was “to call for effective guarantees for
professional practice and the prerogatives of defense; to obtain the release
of the lawyers detained without trial and without charges on instructions of
the Executive branch, and to push for full clarification of the attacks and
kidnappings of which lawyers have been victims; to call for the highest respect
for the dignity, social standing and decorum corresponding to the professional
practice of law.”

Notes_________________

1 Article XVIII of the American Declaration of the Rights and
Duties of Man provides: “Every person may resort to the Court to ensure respect
for his legal rights. There should likewise be available to him a simple, brief
procedure whereby the courts will protect him from acts of authority that, to
his prejudice, violate any fundamental constitutional rights.” Article XXVI
adds: “Every accused person is presumed to be innocent until proven guilty.
Every person accused of an offense has the right to be given an impartial and
public hearing, and to be tried by courts previously established in accordance
with preexisting laws and not to receive cruel, infamous or unusual punishments.”

2 Besides the authorities and attorneys mentioned, the Commission
requested and held interviews with the full Supreme Court. It also conducted
hearings with all the professional institutions that had requested them in a
timely manner. For that reason, the Commission considered it highly unusual
that, on the eve of its departure, the Bar Association of Buenos Aires issued
a press release pointing out that the Commission had not interviewed representatives
of that association, given that the IACHR offices in Buenos Aires had never
received a request for a hearing. The Commission itself sought an interview
with the Argentine Federation of Bar Associations, an organization whose members
comprise all the Bar Associations of Argentina, including the Buenos Aires Association.

3 The Commission discussed these Supreme Court cases in Chapter
III. As for the case of Inés Ollero, it will be taken up again in section E
of this chapter in the discussion of Habeas Corpus.

4 Despite this, as the Supreme Court was handing down its ruling,
the Government proceeded to strip Mr. Timerman of his Argentine nationality
and to expel him from the country.

6 Law Nº 21.264 provides that military, security and law enforcement
personnel should use weapons when persons involved in any of the crimes covered
by this law are caught in flagrante delito, and do not surrender at the first
request or use arms against the authorities. The crimes covered by this law
include incitement to mass violence and disruption of public order, assaults
against transport and other public services, actions against water, food and
medicine, and fire, explosion or any other similar means that may do harm to
persons and property.

7 Law 21.267 of March 24, 1976. The Military jurisdiction established
covers any criminal and/or disciplinary infractions committed by members of
the forces during, or on the occasion of, missions charged to them by the respective
military command.

8 Law 21.461 of November 19, 1976. Decree 2963 put the aforementioned
law into effect. Furthermore, Law 21.463 published in the Official Gazette of
December 1, 1976, deals with this same subject.

9 The case of Miss Inés Ollero is recorded by the Commission
under the number 4326.

10 The corresponding paragraphs of this judgment have been
quoted in Chapter III.

11 The case of Mr. Carlos Mariano Zamorano is recorder under
the number 1980 on the status of the defense lawyers in Argentina, and is being
processed in accordance with the Commission’s Regulations.

12 Dr. Zamorano is currently free under surveillance on orders
from the Executive.

13 As an example of this Supreme Court procedure mention can
be made of the judgment regarding the case of Castro, Fidel Angel; Feldman,
Sajario; Perelmuter, Enrique; and La Rizza, José, mentioned in Section B of
this Chapter.

14 It should be made clear that this judgment did not bring
about actual freedom for the beneficiary, because Timerman was included in a
resolution by the Military Junta pursuant to an Institutional Act, which also
resulted in the deprivation of his freedom. This resolution was recently annulled
during the second appeal for Habeas Corpus, in accordance with the judgment
handed down on September 17, 1979. As indicated elsewhere in this Report, Mr.
Timerman, despite the Court’s order for release, was exiled and stripped of
his nationality. Nevertheless, the Court’s judgment offers hope for effective
action by the legal apparatus for protection against arbitrary detention.

15 According to information provided to the Commission by
the Government, from April 1, 1976 to June 30, 1979, some 7,000 petitions for
Habeas Corpus had been presented to federal, provincial, local and Buenos Aires
Courts (the Government gave no information on the results of the petitions).
It may be that the figure given by the Government—clearly smaller than the figure
the Commission has received from other sources—has counted only one petition
presented when it has been on behalf of several persons, or that when the same
person has been the subject of several petitions for Habeas Corpus only one
instance has been counted.

16 According to information provided by the Government to
the Commission, of 702 writs of Amparo presented to federal, provincial, local
and Buenos Aires lower Courts, from January 1, 1976 to June 30, 1979, 309 were
rejected, 13 were accepted, 12 were dismissed, 37 are being processed and the
court disqualified itself in 188 instances.

17 For this purpose, the Commission opened case Nº 1980. Subsequently,
some of the lawyers originally involved in that case were taken up individually
under different numbers.

18 In this regard, see the situation of several disappeared
lawyers in Chapters II and III.